R v Mooka

[2007] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mooka [2007] QCA 36

PARTIES:

R
v
MOOKA, Michael Jackson
(applicant)

FILE NO/S:

CA No 341 of 2006
SC No 92 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

9 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2007

JUDGES:

de Jersey CJ, Williams JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON –where applicant pleaded guilty to manslaughter and other offences and was sentenced to ten years imprisonment and deemed a serious violent offender – where grossly intoxicated applicant struck deceased with a pool cue in an unprovoked, gratuitous attack – where applicant had a bad criminal record – whether sentence imposed was manifestly excessive

R v Bojovic[1999] QCA 206; [2000] 2 Qd R 183, distinguished
R v DeSalvo[2002] QCA 63; (2002) 127 A Crim R 229, distinguished
R v Duncombe [2005] QCA 142; CA No 410 of 2004, 6 May 2005, followed
R v George; ex parte A-G (Qld)[2004] QCA 450; CA No 316 of 2004, 26 November 2004, distinguished
R v Katia; ex parte A-G (Qld) [2006] QCA 300; CA No 111 of 2006, 22 August 2006, distinguished
R v MP [2004] QCA 170; CA No 42 of 2004, 20 May 2004, distinguished
R v Stepto [2002] QCA 10; CA No 220 of 2001, 4 February 2002, distinguished

COUNSEL:

T Moynihan for the applicant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  The applicant pleaded guilty to manslaughter and was sentenced to 10 years imprisonment.  He also pleaded guilty to two counts of assault occasioning bodily harm, which attracted concurrent terms of six months imprisonment to be served concurrently with the 10 year term.  He seeks leave to appeal on the ground the sentence of 10 years was manifestly excessive because it failed to allow sufficiently for matters of mitigation and because its effect was to deem him a serious violent offender, and so obliged to serve at least 80 per cent of the basic term.

As to that, the learned sentencing Judge observed that a declaration of a serious violent offence, automatically applicable because of the 10 year term, would have been appropriate anyway.  The Judge described it as,

"A vicious, unprovoked attack in a public place using a weapon."

The weapon was a pool cue.  The applicant, then 25 years of age, had that day, the 8th of July 2005, been drinking heavily.  The offence of manslaughter occurred at about…